USCIS continues its efforts to address the enormous backlogs that the pandemic aggravated. The latest announcement is a temporary rule to increase the automatic extension period for employment authorization documents (EADs) from 180 days to 540 days beyond the current expiration while the renewal application is pending. The rule is effective May 4, 2022 to October 26, 2023. The extension period then will revert to 180 days.
The most common categories of EADs are refugees, asylees, persons with pending asylum applications, persons with pending adjustment (green card) applications, and H-4 spouses. Until last year, spouses with E or L status also often had EADs. USCIS now acknowledges that their E and L status alone authorizes them to work. EADs typically are valid for one or two years, or for the duration of the underlying nonimmigrant status. For example, an H-4 spouse’s EAD is tied to the H-4 status, which can be three years maximum.
With the new rule, a pending EAD renewal application will extend the EAD for up to 540 days. While most applicants will benefit from the full 540 days, if needed, applications based upon a nonimmigrant status, such as an H-4 spouse, will be limited by the underlying nonimmigrant status. For example, when an H-4 spouse enters the United States with an H-4 visa, U.S. Customs and Border Protection officers determine how long the person can remain in the United States. The period of stay is the person’s “status” and is reflected on the electronic I-94 Departure Record. The H-4 status can be valid only as long as the H-1B spouse’s status. In many cases, the H-1B employer coordinates submitting H-1B, H-4, and EAD extensions together, which can be done six months before the current expiration.
To look an example, if the current H-1B, H-4, and EAD are valid to November 15, the renewals can be submitted May 15. In this situation, there are only two ways the H-4 spouse could get the automatic EAD extension if the new EAD is not approved by November 15: (1) USCIS approves the H-4 status extension before November 15, or (2) USCIS approves the H-1B extension, and the H-4 spouse travels abroad and returns to get a new period of H-4 status based upon the spouse’s approved H-1B petition and status. In looking at the practicality of the 540-day “maximum” extension period, it’s thus somewhat of a wet blanket for H-4 spouses and others with nonimmigrant status.
The 540-day extension certainly is a positive development for most EAD renewal applications. It’s not perfect, but neither is the Union. USCIS is trying.